Roberts Court shocks Federal Agencies in Limiting Authority of the Code of Federal Regulations (CFR)

CFR helps DoD and other agencies serve the public interest with transparency

Breaking News: I had just completed the bulk of another post but breaking news interrupted my cycle. Namely, I just learned that the U.S. Supreme Court just now has overruled Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).

As a loyal career lawyer of the Department of Defense over 41 years, I can tell you that today’s rule will make it much harder to administer in the uniformed and civilian services.

As counsel, we could advise our managers, based upon our careful reading of regulations, which enabled our managers to aggressively pursue the interests of our National Defense within the bounds of the law.

Congressional statutes are necessarily general in nature. Congress intentionally delegates to Agencies the duty to implement Congressional legislation through detailed regulations.

The public has massive input.

The Agency first announces a proposed new rule.

There is a long period for the public at large to comment — say 60, 90 days or longer

During the long comment cycle, the public at large views the full text of the proposed regulation and submits comments and suggests amendments.

The commenters include industry, labor, environmentalist activists, civil rights activists, in other words, the diverse public at large, chimes in and voices objections and suggest changes. The rule is not finalized until the Agency fully explains in the Federal Register what the public responses were and what the Agency did in response to the public responses. This is a fully transparent process.

Here is today’s decision:

https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf

I learned of the decision here:

https://www.washingtonpost.com/politics/2024/06/28/supreme-court-chevron-federal-agency-authority/

The Supreme Court has issued other far-reaching decisions just now, which CJ Roberts has just announced is the last day of the current term.

I am going to cut my narrative off here, and clip and paste my other writing into a new post, because this ruling just happens and takes precedence.

The documents published are over 100 pages and it will take time to analyze.

I must warn that this posting is my first impression of the announcement. But I am a seasoned bureaucrat.

As one who practiced 41 years in Department of Defense, Agency lawyers could comfortably consult the Congressionally mandated, publicly reviewed and commented and transparent Code of Federal Regulations, which Congress designed to provide detailed implementation of necessarily generalized Acts of Congress.

The Department of Defense has a very busy schedule to perform duties in the interests of the public at large, and I can tell you managers like a counsel’s advice that is simple, straightforward, and absent of legal jargon.

The lawyer prepares a simple memo that the senior manager can read in 30 seconds to a minute.

To protect the record, the lawyer types a long memo for file containing the detailed legal reasoning derived from the Congressional Acts, specifically cited, and the implementing Code of Federal Regulations, each of which was commented upon by the Public over a long time before being published in Congressionally approved procedures.

The Chevron rule made it feasible for the counsel to help the efficiency of senior leaders by letting them say, “My lawyer told me to do it.”

I took pride in finding the legal underpinnings that helped my senior managers efficiently administer public duties for the Naval Fleet and the public at large under totally, publicly transparent procedures.

Today’s ruling does not make this task at all impossible.

But it creates much more uncertainty.

As a lawyer, hey, I like uncertainty and countervailing arguments.

But I can tell you, busy senior managers, your client, their sense of humor is on a very short fuse when it comes to confusion about whether she may or may not proceed with a procedure that will help the fleet.

I learned within my first weeks of public practice, the senior leader expects you to be learned. You don’t impress the senior leader by showing her all of your resources that you marshaled for in support of her decision All those files are messy, and she is in a rush, and admirals and higher headquarters and paying sponsors are breathing down the manager’s neck today for an answer that, coming tomorrow would be too late. So give me your answer. Now would be nice!

If you document it for the file, that’s fine, but that’s not what I want to know. I want to know that I can tell anybody, My lawyer told me to do it.

So it is my decision, but it would be the lawyer’s neck.

So, understandably, the lawyer and the manager take different views of the length of a supporting legal memo.

Left to her own devices, a lawyer’s memo might come next month, with a plethora of references and counterarguments.

The manager is too busy to read it and quite frankly she doesn’t care.

What she cares about is that you have solid knowledge and confidence in a decision and will back her up if someone higher or an inspector general questions a decision.

And a senior leader, in all her rush and efficiency, is always subject to a sudden review from any direction, so she wants you to be solid.

If you waver, that is fatal to the mission. There is no room for ambiguity or ambivalence.

That is the real world of life in the Department of Defense.

These are solid, good people, who serve the interests of the public with integrity and objectively.

With a few exceptions, of course. It is a human organization, after all.

Now: Armando only speaks for himself. The Marines, the Air Force and the Navy have their own policy procedures and they speak for themselves. This was my career, but I have no authority, and do not pretend to speak on behalf of the Department of Defense or any of its agencies or any Federal Agency.

Nope.

All you get here is straight from Armando’s mouth.

But I did brush my teeth!